92 Decision Citation: BVA 92-07866
Y92
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
DOCKET NO. 91-49 048 ) DATE
)
)
)
THE ISSUE
Entitlement to a permanent and total disability rating for
pension purposes.
REPRESENTATION
Appellant represented by: Department of Veterans Affairs,
California
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
K. J. Spindler, Counsel
INTRODUCTION
The veteran is the appellant in this case. He had active
military service from October 1964 to August 1966. This
case came before the Board of Veterans' Appeals (hereinafter
the Board) on appeal from a September 1990 rating decision
of the San Francisco, California Regional Office (RO) of the
Department of Veterans Affairs (VA), of which the veteran
was notified in October 1990. The veteran's notice of
disagreement was received in February 1991. A statement of
the case was issued in March 1991. The veteran's
substantive appeal was received later in March 1991; in it
he requested to appear personally at a hearing before VA
field personnel in connection with this appeal.
After additional medical evidence was added to the record
(the veteran's VA claims folder), the RO issued a
supplemental statement of the case in July 1991. The
veteran appeared and testified at a hearing before a VA
hearing officer at the RO in August 1991. The hearing
officer issued his decision later in August 1991. A
supplemental statement of the case was issued by the RO in
September 1991.
The California Department of Veterans Affairs, which has
represented the veteran throughout this appeal, furnished
written argument to the VA in October 1991. The case was
received at the Board in Washington, D.C. in November 1991.
CONTENTIONS OF APPELLANT ON APPEAL
In his various written statements the veteran has contended
that the RO committed error by denying his claim for
nonservice-connected pension benefits because it failed to
consider the records from the various medical practitioners
who have treated him for his arthritis, psychiatric
disability, asthma, bilateral hearing loss, high blood
pressure, and vision problems. The veteran relates that, in
addition to receiving ongoing treatment for his medical and
psychiatric problems, he has to wear a hearing aid in his
left ear and bifocal glasses. He points out that the Social
Security Administration has determined that he is
100 percent disabled. It is asserted that, considering the
veteran's age, education, and work experience, a liberal
application of the criteria of 38 C.F.R. § 3.321(b)(2)
(1991) warrants an allowance of the benefit sought on appeal.
DECISION OF THE BOARD
For the reasons and bases hereinafter set forth, it is the
decision of the Board that the preponderance of the evidence
is against the claim.
FINDINGS OF FACT
1. The veteran is 49 years old, reports either a 10th grade
or high school education, and has reported that his work
activities have mostly involved manual labor.
2. The veteran's chronic disabilities causing possible
work-related limitations are shown to consist of dysthymic
disorder, arthritic complaints involving joints in his lower
extremities, allergic rhinitis, asthma, and bilateral
hearing loss.
3. The veteran's chronic disabilities are not so severe
that they prevent him from following all substantially
gainful occupations.
CONCLUSION OF LAW
The applicable criteria for a permanent and total disability
rating for pension purposes have not been met. 38 U.S.C.A.
§§ 1502, 1521, 5107 (1991); 38 C.F.R. §§ 3.321, 3.340,
3.342, and Part 4 (1991).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
We have considered the merits of this case because the
veteran's contentions are not implausible and they relate to
the governing legal criteria for the benefit he is seeking.
Accordingly, it is found that he has submitted evidence of a
"well-grounded" claim, within the meaning of 38 U.S.C.A.
§ 5107(a) (1991). There is no specific allegation, nor do
we find any other indication in the record, that the VA has
a further duty to assist the veteran by seeking to develop
additional evidence to support his claim.
The transcript of the August 1991 hearing on appeal shows
that the veteran testified under oath that the difficulty he
had with his hearing, and his need to wear hearing aids, led
to his unemployment. When questioned about the problems he
was having with his nerves, the veteran explained that he is
bothered by noise and stress around his home, that he takes
an antidepressant medication and medication for sleep, and
that he receives outpatient treatment. He indicated that
during the day he stays at home and watches television.
Some of the veteran's testimony focused on problems he was
having at home dealing with his father-in-law's extramarital
relationships. The veteran testified that he had been in a
penitentiary twice because of violent crimes, because he was
unable to get along with other people. Relative to his
arthritis, he testified that he experiences flare-ups of
pain and stiffness in various joints, usually in one of his
knees, but sometimes in an elbow or in a joint in his
finger. He referenced having a cane to use when his knees
stiffen up. He reported experiencing problems with his nose
during hay fever season. In response to a question about
asthma he complained of a sensation of his head swelling,
having difficulty breathing, and experiencing a little
wheezing when he gets up in the morning. He was observed by
his representative to be wearing hearing aids at the hearing.
In the veteran's Department of Defense Form 214 it was
reported that he completed 12 years of civilian education.
In an application for VA educational assistance which he
filled out in December 1968 the veteran advised that he
completed four years of high school in 1961. In his
application for VA pension benefits, received by the VA in
March 1990, the veteran indicated that he completed high
school. During a VA psychiatric examination in July 1990 he
informed the examiner that he completed high school. In May
1991 the veteran reportedly told the same examiner that he
did not complete a high school education. At the hearing on
appeal in August 1991 the veteran testified under oath that
he only completed the 10th grade, and that he did not have a
GED (General Equivalency Diploma) certificate.
The above information shows that the veteran has not given
entirely consistent information to the VA about his
educational attainment. However, we do not find that the
difference between a 10th grade education and a 12th grade
education is material in this case.
Each statement of the veteran's date of birth of record
indicates that he was born in August 1942. Thus, he is
currently 49 years old.
Relative to the veteran's work history, in the March 1990
application for VA pension benefits he indicated that he
last worked in 1984, and worked in housekeeping at a VA
medical center during the one-year period before he became
totally disabled. In connection with the veteran's July
1990 VA medical examination, he related that from 1974 to
1976 he worked in a power plant, from 1977 to 1980 he worked
as a floor hand, and from 1985 to 1986 he worked in
housekeeping at a VA hospital. At the hearing on appeal in
August 1991 he testified that his work experience primarily
consisted of manual labor jobs, loading trucks and cargo
planes during his military service, and working in oil
fields after service. He testified that he last worked
during 1987.
The law authorizes the payment of pension to a veteran of a
war who has the requisite service and who is permanently and
totally disabled. 38 U.S.C.A. §§ 1502, 1521 (1991). If
his/her disability is less than 100 percent and he/she is
under 65 years of age, he/she must be unemployable by reason
of disability. 38 C.F.R. §§ 3.321, 3.340, 3.342 and Part 4
(1991).
In the latest formal rating decision of record, dated in
July 1991, the veteran's chronic disabilities were evaluated
by the RO under the criteria of the VA's Schedule for Rating
Disabilities (Rating Schedule), as follows: Dysthymic
disorder, 30 percent; arthritis, knees, 20 percent; allergic
rhinitis, 10 percent; asthma, zero percent; bilateral
hearing loss, zero percent; and acneiform dermatitis,
zero percent. The combined evaluation for the above
disabilities, all of which were indicated to be nonservice
connected, was 50 percent.
Photocopies of various letters from the Social Security
Administration, of record, confirm that the veteran has been
determined by that agency to be totally disabled for
purposes for eligibility for Supplemental Security Income,
effective from the date of his application for that benefit,
in May 1989. Also of record are photocopies of documents
dated in April 1991, indicating that the veteran was
determined to be entitled to compensation under an "Agent
Orange Payment Program as 100% disabled" with a "disability
onset date of May 1, 1989...."
The post service medical evidence of record consists of
photocopies of numerous entries in private treatment
records, statements made by private physicians, and reports
of VA examinations accomplished for compensation and pension
purposes in July 1990 and April and May 1991. Specifically,
private medical reports were received from Ziad A. Tamimi,
M.D., dated from June 1990 to August 1991; Solano County
Mental Health Services, dated from May 1990 to August 1991;
A. J. Hadeed, M.D., dated in November 1989 and November
1990; Hearing Services of Vallejo, dated in November 1989,
October 1990, February 1991, and April 1991; and an undated
report from an optometrist wherein the veteran was noted to
have been last examined in October 1989.
The photocopies of 1989-1991 private medical treatment
records indicate that the veteran's chronic medical problems
consisted of complaints involving the joints of his lower
extremities, primarily the knees, diagnosed as arthritis;
asthma; insomnia, depression, anxiety, and headaches;
bilateral hearing loss; and defective vision. The veteran
had a few blood pressure readings with diastolic pressures
as high as 100, but the vast majority of his recorded blood
pressure readings were below 150/90. The private medical
records show that the veteran was prescribed medications for
many of his symptoms, including anti-inflammatory
medications for his arthritic complaints, pain medication
for his headaches, sleeping medication, antidepressant
medication, and bronchodilator medication and antibiotics
for his respiratory problems. Some of his anxiety was
attributed to family problems and marital stress. There is
no report of any private X-ray examination of the veteran's
lower extremities, or any other part of his body, except for
his sinuses. Audiometric testing was accomplished privately
in November 1989 and October 1990. In February 1991
Dr. Tamimi indicated that an electrocardiogram would be
performed on the veteran's next visit; however, no such
study was submitted to the VA.
The VA examination reports do not contain any objective
finding of any functional impairment or other signs of
arthritis involving any of the veteran's joints. In July
1990 the veteran's motor strength and sensory examinations
were found to be 4/5. In April 1991, all the veteran's
joints were reported to be within normal limits. Arthralgia
(pain in a joint) was the pertinent diagnosis at that time.
The VA examination reports do not include any X-ray
examination reports.
The fact that the veteran has joint problems from time to
time is supported by the prescriptions for anti-inflammatory
medications he has received (which he has documented by
submitting many labels from prescription bottles).
Assuming, arguendo, that the veteran actually has arthritis
in each knee joint, this disability is not shown to warrant
any more than a 20 percent evaluation under the criteria of
the Rating Schedule, inasmuch as he is not shown to have any
loss of motion or other significant functional impairment as
a result thereof. The 10 percent evaluation for each knee,
under Code 5003, compensates for degenerative arthritis
established by X-ray findings with occasional incapacitating
exacerbations. Because of this we do not find it necessary
to obtain X-ray examinations of the veteran's knees at this
juncture.
The psychiatric examinations accomplished in connection with
the VA compensation and pension examinations in July 1990
and May 1991 were both accomplished by the same physician.
On each occasion he diagnosed the veteran to be manifesting
a dysthymic disorder of moderate severity. He also
indicated that the veteran's industrial capabilities were
compromised thereby. The veteran complained of a dysphoric
mood and reported ongoing treatment with antidepressant
medication and outpatient treatment for depression at a
mental hygiene clinic. However, no particular abnormality
was reported on the mental status examinations. In July
1990 the veteran indicated that he had attempted suicide in
1988. In May 1991 the veteran denied suicidal ideation.
His symptoms which suggested a history of depression were
said to include insomnia, depressed mood, suicidal ideation
in the past, and poor concentration. The examiner also
noted that the veteran described symptoms which suggested
hypervigilance.
The entries in the private mental hygiene clinic reports are
generally in accord with the complaints, findings, and
assessments recorded on the VA psychiatric examinations in
July 1990 and May 1991.
Based on the foregoing evidence, the veteran's psychiatric
disability is not found to warrant any more than a
30 percent evaluation under the criteria of the Rating
Schedule, because the manifestations of his depression are
not shown to be any more than moderate in severity. His
symptoms of depression are not shown to result in any more
than a "definite" impairment in his ability to establish and
maintain effective and wholesome relationships with other
people, and to produce any more than a "definite" extent of
industrial impairment. 38 C.F.R. Part 4, Code 9405 (1991).
On the April 1991 VA examination, examination of the
veteran's nose revealed his mucous membranes to be red and
swollen, with a watery discharge. Allergic rhinitis was
diagnosed. There was no notation of atrophy of intranasal
structures, crusting, or ozena (foul-smelling discharge).
Consequently, his allergic rhinitis is not found to exceed
the criteria for a 10 percent evaluation provided under the
Rating Schedule for evaluating the listed disability most
closely analogous to allergic rhinitis, chronic atrophic
rhinitis (Code 6501).
Both in July 1990 and April 1991, VA examiners found the
veteran's chest to be clear on clinical evaluation.
Pulmonary function testing was accomplished in connection
with the VA examination in April 1991; the results were
interpreted by a physician to be within normal limits.
Seasonal asthma was diagnosed by the examining physician in
April 1991. Because there is no medical verification of
recurrent episodes of paroxysms of asthmatic-type breathing
contained in the current medical evidence of record, we find
no evidence that the reported seasonal asthma is manifested
by breathing problems of such frequency and severity that
this disability warrants a compensable evaluation under the
criteria for evaluating bronchial asthma contained in Code
6602 of the Rating Schedule.
The latest audiometric evaluation of record, accomplished by
the VA in May 1991, revealed the average of the veteran's
pure tone (air conduction) hearing threshold at 1,000,
2,000, 3,000, and 4,000 hertz, to be 23 decibels in the
right ear and 43 decibels in the left ear. His speech
recognition ability scores were found to be 96 percent
correct in each ear. Bilateral, sensorineural hearing loss
was assessed. It was noted that he had two hearing aids.
While the abnormal audiometric examination findings confirm
that the veteran has a partial hearing loss in each ear, of
greater severity in the left ear, his hearing loss is not so
severe that it exceeds the range of criteria in the Rating
Schedule assigned an evaluation of zero percent, under Code
6100. The evaluations provided under the Rating Schedule
are intended to make proper allowance for improvement by
hearing aids. 38 C.F.R. § 4.86 (1991). Consequently, the
fact that the veteran wears hearing aids does not mean that
his hearing loss is necessarily severe enough to warrant a
compensable rating under the Rating Schedule.
When the veteran was examined by the VA in July 1990 he was
noted to have bifocal glasses. There is absolutely no
medical evidence of record to show that the veteran has a
noncorrectable impairment of his visual acuity. The fact
that he wears bifocal glasses does not establish the
existence of any significant work-related limitation. Even
a noncorrectable impairment of central visual acuity to
20/40 in each eye is assigned a zero percent evaluation
under the Rating Schedule. Code 6079 and 38 C.F.R. § 4.75
(1991).
The July 1990 and April 1991 VA examinations also revealed a
problem with acneiform lesions present over the veteran's
shoulders and posterior torso. There is no specific
contention about work-related limitations resulting from his
skin condition, nor is the notation of these lesions
sufficient to establish that the disability warrants a
compensable rating under the Rating Schedule. Eczema, with
slight, if any, exfoliation, exudation, or itching, on a
nonexposed surface or a small area, is assigned a
zero percent evaluation under Code 7806 of the Rating
Schedule.
On the VA examination in April 1991 the veteran's blood
pressure reading was found to be 146/88. None of the
medical reports of record contains any diagnosis of any type
of organic cardiovascular disease. Consequently, despite
the veteran's indication that he has high blood pressure, we
find that the presence of a chronic cardiovascular
disability has not been medically verified.
The evidence about entitlement to compensation under an
Agent Orange program does not establish any fact about the
existence of, or severity of, any particular disability.
The combination of the 30 percent disability for the
veteran's psychiatric disorder with a 20 percent evaluation
for his bilateral knee disability and a 10 percent
evaluation for his allergic rhinitis, under the Combined
Ratings Table in the Rating Schedule, 38 C.F.R. § 4.25
(1991), shows that the combined evaluation warranted for the
veteran's chronic disabilities is 50 percent.
38 C.F.R. § 3.321(b)(2) (1991) provides that where the
evidence of record establishes that an applicant for pension
who is basically eligible fails to meet the disability
requirements based on the percentage standards of the rating
schedule but is found to be unemployable by reason of
his/her disability or disabilities, age, occupational
background and other related factors, a permanent and total
disability rating on an extraschedular basis may be approved.
The medical findings documented in the record do not show
that the veteran is physically incapacitated for engaging in
work activities which would not entail heavy lifting and
carrying duties. Relative to his reported joint problems,
the fact that he has been prescribed many medications does
not substitute for objective medical findings documenting
the presence of more than occasional or subjective
complaints. The manifestations of his psychiatric disorder
may prevent him from successfully maintaining work in a
stressful environment or one where excessive contact with
the public or excessive interpersonal relations would be
required of him. Because of his hearing loss, the veteran
might not be able to work safely or effectively in an
environment with a great deal of background noise present,
if acute hearing acuity would be needed for his work duties
or for safety.
However, these limitations do not eliminate all possible
substantially gainful activities. We find no credible
evidence that the veteran is actually totally incapacitated
for all types of sustained, gainful work activity. We
cannot, and need not, explain the award of Supplemental
Security Income on the basis of total disability for
employment. In the opinion of this Section of the Board the
evidence currently of record clearly does not lead to such a
conclusion. Again, there is no specific allegation that
there exists additional medical evidence, not of record,
which would help prove the veteran's case. The veteran
contends that the RO ignored his private medical reports;
not that the reports he wishes to have considered were never
obtained.
(NOTE: The section numbers of title 38, United States Code,
were changed in 1991. The new section numbers are given in
this decision.)
ORDER
A permanent and total disability rating for pension purposes
is denied.
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
*
J. J. SCHULE
C. J. STUREK
*38 U.S.C.A. § 7102(a)(2)(A) (1991) permits a Board Section,
upon direction of the Chairman of the Board, to proceed with
the transaction of business without awaiting assignment of
an additional Member to the Section when the Section is
composed of fewer than three Members due to absence of a
Member, vacancy on the Board or inability of the Member
assigned to the Section to serve on the panel. The Chairman
has directed that the Section proceed with the transaction
of business, including the issuance of decisions, without
awaiting the assignment of a third Member.
(CONTINUED ON NEXT PAGE)
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266
(1991), a decision of the Board granting less than the
complete benefit, or benefits, sought on appeal is
appealable to the United States Court of Veterans Appeals
within 120 days from the date of mailing of notice of the
decision, provided that a Notice of Disagreement concerning
an issue which was before the Board was filed with the
agency of original jurisdiction on or after November 18,
1988. Veterans' Judicial Review Act, Pub. L. No. 100-687,
§ 402 (1988). The date which appears on the face of this
decision constitutes the date of mailing and the copy of
this decision which you have received is your notice of the
action taken on your appeal by the Board of Veterans'
Appeals.